United States v. Franklin

• Decision Date: 07 September 2012
• Docket Number: No. 11–10555.,11–10555.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Richard M. FRANKLIN, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

694 F.3d 1

UNITED STATES of America, Plaintiff–Appellee,

v.Richard M. FRANKLIN, Defendant–Appellant.

No. 11–10555.

United States Court of Appeals, Eleventh Circuit.

Sept. 7, 2012.

Linda Julin McNamara, Michelle Thresher Taylor, Robert E. O'Neill, David Paul Rhodes, U.S. Attys., Tampa, FL, Jeffrey F. Michelland, Yolande G. Viacava, U.S. Attys., Fort Myers, FL, for Plaintiff–Appellee.

Gene R. Cipriano, Jr. (Court–Appointed), Law Offices of Gene R. Cipriano, Jr., PA, St. Petersburg, FL, for Defendant–Appellant.

Appeal from the United States District Court for the Middle District of Florida.

Before DUBINA, Chief Judge, and JORDAN and ALARCÓN,^* Circuit Judges.

ALARCÓN, Circuit Judge:

Richard Franklin has appealed from the district court's order denying his motion to suppress firearms seized from within his residence following his arrest outside the house pursuant to a warrant for absconding from his conditional release on parole. He was indicted on three counts that charged him with two counts of being a felon in possession of firearms in violation of 18 U.S.C. §§ 922(g)(1) and 924(e), on separate dates, and one count of possessing a firearm not registered to him in violation of 26 U.S.C. §§ 5861(d) and 5871.

Franklin contends that the district court erred in concluding that the warrantless entry of his residence did not violate the Fourth Amendment because the evidence showed that probable cause existed that illegally possessed firearms were in the residence and that exigent circumstances justified an entry without obtaining a search warrant.

We agree with the district court that the officer's conduct did not violate the Fourth Amendment and affirm.

I

A

The following evidence was presented at a hearing conducted by the magistrate judge regarding the validity of the warrantless search of Franklin's residence. After serving a term of imprisonment in a Florida state prison, following his conviction for burglary and grand theft, Franklin was granted conditional release of the remainder of his sentence on April 29, 2006. The length of his conditional release was set to expire on July 16, 2006. Probation Specialist William Lally (“Officer Lally”) began supervising Franklin on May 2, 2006. Franklin was informed of the conditions of his release by Officer Lally on that date. Franklin was instructed that, as a condition of his release, he was required to allow Officer Lally to search his person, property, and premises.

On June 23, 2006, Franklin telephoned Office Lally. Franklin stated that the officer could look for him but he would not find him. He also admitted that he had not followed Officer Lally's instruction to report for a drug test because he had used and was in possession of marijuana. Franklin stated further that “if he had a gun he would stick it in his mouth and end it all.”

Officer Lally submitted a report to the Florida Parole Commission on the same date setting forth several violations of the terms of Franklin's conditional release. The Parole Commission issued a warrant for Franklin's arrest that day.

Officer Lally attempted to locate Franklin several times without success. He received information in August 2006 that Franklin was residing at his fiancée's home in Fort Myers, Florida. Officer Lally went to this location several times but did not see any vehicles there.

On August 24, 2006, Officer Lally observed two vehicles in the driveway at approximately 10:30 at night. He drove around the block and on his return he saw a third car there. The lights were on in the front room of the house.

Officer Lally called the Lee County Sheriff's Office and requested backup assistance. Deputy Sheriff Jamie Thorpe, Deputy Michael Haigis and two other officers responded to Officer Lally's request. After they arrived, Officer Lally knocked on the door loudly several times. He received no response. Officer Lally showed Deputy Haigis a photograph of Franklin and asked him to go to the back of the house. There, Deputy Haigis observed Franklin through a rear window. He also saw several firearms in plain view. Deputy Haigis reported his observations to Officer Lally. Officer Lally then knocked on the door for approximately ten or fifteen minutes.

Officer Lally also telephoned Franklin several times using his cell phone number. At first, someone answered the telephone and then immediately hung it up. After a number of attempts, Franklin responded to the telephone call. Officer Lally recognized his voice. Officer Lally told Franklin that the officers were not going to leave and that a SWAT team was on the way because this was being treated as a barricaded gunman situation. Officer Lally told Franklin the only safe way to resolve this situation was to come out the door in boxer shorts, with his hands raised. After several minutes, Franklin came out the front door with his hands raised. He was taken into custody and placed in a police car.

Officer Lally testified that, after Franklin was arrested, he entered the house out of a concern for the safety of the officers since Franklin was a convicted felon and there were other persons and firearms in the house. Two adults and a child were in the house when he entered. Upon entering the residence, he seized five weapons: three rifles, and two sawed off shotguns.

Officer Lally testified that his entry into the residence was “a combination of my position as the offender's parole officer and officer's safety, securing those weapons.” Officer Lally submitted a report to the Parole Commission based on the fact that Franklin was found in a house that contained illegal weapons, including sawed off shotguns.

B

On May 9, 2007, a grand jury returned an indictment in the United States District Court for the Middle District of Florida in which it charged Franklin with three counts of illegally possessing firearms. On March 1, 2010, Franklin filed a motion to suppress the firearms seized by Officer Lally after entering Franklin's residence following his arrest outside the house. He argued that the firearms and his statements to the officers following his arrest were inadmissible because they were obtained in violation of the Fourth Amendment without a search warrant or his consent, and in the absence of facts demonstrating probable cause to enter the residence based on exigent circumstances.

The Government filed a response to the motion to suppress in which it asserted that the challenged evidence was admissible on discrete grounds. It asserted that the evidence was admissible because Franklin had consented to warrantless searches of his residence in signing his Certificate of Conditional Release and Terms and Conditions of Supervision. The Government also contended that the entry of the residence was lawful because the officers had reasonable suspicion to search Franklin's residence when they saw firearms in the dining room through a window. The Government argued that “[t]he officers also had a right to enter the residence for officer safety ....”

After considering the testimony presented at the evidentiary hearing, the magistrate judge recommended that the motion to suppress be granted. The magistrate judge concluded that Franklin was no longer on conditional release on August 24, 2006, because the termination date was July 16, 2006. Accordingly, the magistrate judge determined that the condition that Franklin was required to submit to a search of his property was no longer in effect on that date. He also rejected the Government's argument that the expiration of the term of conditional release was tolled by the issuance of the arrest warrant on June 23, 2006 because of Franklin's violations of the conditions of his release. The magistrate judge held that Florida's parole laws do not provide for the tolling of a conditional release date.

The magistrate judge rejected the Government's contention that the good faith exception to the exclusionary rule, set forth in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), and Herring v. United States, 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009), was applicable. He reasoned that Officer Lally was not misled in his belief that he was authorized to conduct a warrantless search since “the termination date [of his conditional release] was clear on the face of the Conditions of Supervision.” The magistrate judge expressly found that his belief “was not grounded in good faith.”

The magistrate judge rejected the Government's contention that Officer Lally had the authority to enter the residence to seize the firearms to assure his own safety and that of the other officers who were present. The magistrate judge expressly found that Officer Lally's safety motivation testimony was not credible.

II

A

After reviewing the findings and recommendation of the magistrate judge, the district court denied Franklin's motion to suppress on June 22, 2010. The district court agreed with the magistrate judge's finding that Officer Lally lacked credibility in testifying that he entered the residence because he believed that the persons remaining in the residence posed a danger to the officers. The district court stated that while it “accepts and adopts the Recommended Decision on Motion to Suppress as to the issues it addresses, the Court finds there was sufficient probable cause and exigent circumstances to justify the entry of the residence and seizure of the firearms ....” United States v. Franklin, 721 F.Supp.2d 1229, 1231 (M.D.Fla.2010) (emphasis added).

The district court acknowledged that the Government did not argue in its response to the motion to suppress or in its argument to the magistrate judge that exigent circumstances authorized the entry into the residence to seize the firearms, but nonetheless exercised its discretion to consider the issue. It concluded that the evidence was sufficient to demonstrate that Officer Lally had probable cause to believe that illegally possessed firearms were in the residence before he...